Remember? In 2004? Comelec gagged Channel 5, remember that? Channel 5 had its own quick-count nationwide; they deployed their reporters to all the regions and they phoned in their count; it was all in a chart and you could see how they distributed the count. But they were gagged by Comelec and the DOJ; and oh, by the way their quick-count had showed FPJ leading.
Comelec had a penchant for choosing which surveys and quick-counts to allow and not allow (or maybe that should be in the present tense. A recently published version of Comelec resolution 7767 had a provision that stated that the publication and airing of surveys 15 days before elections, is prohibited; the Comelec spokesperson on ANC later said it would be withdrawn. i’m not a big fan of the kind of media coverage of surveys prevailing, when the media fail to disclose the sponsors, how many surveys the sponsors financed, and how many the sponsors published/ did not publish; who chose the names that would be ranked etc. there’s some dishonesty with failure to disclose relevant information there; but you cannot illegalize it, and you cannot outlaw the publication of surveys; we can just prick their conscience; i’ll talk about that some other day, i promise i will). But on the gag order:
Here was our media advisory on that gag order:
“The Emperor has no clothes. Empress Gloria Macapagal-Arroyo has no clothes.”Statement and Legal Opinion of thePublic Interest Law Center on the Silencing of the Quick Count of ABC Channel 5
quote “Censorship or prior restraint. This is the nature of the gag order imposed by the Comelec, the DOJ, and justified by Malacanang, on ABC Channel 5 to stop the network from conducting and airing its quick count.
quote”This was the legal opinion issued by the Public Interest Law Center. “The Supreme Court has held in a long line of cases that, and we quote `Any form of prior restraint comes to this Court bearing a heavy presumption against its constitutionality’. Prior restraint means that the publication or broadcast is stopped even before it sees the light of day. Nobody gets to see it. A small group of people in government decide what is fit or not fit for the public to read or see. It is also called censorship, and the Supreme Court had said many times over that it is presumed unconstitutional or illegal or invalid, in New York Times and Washington Post vs. United States, Near vs. Minnesota, Eastern Broadcasting (DYRE) vs. Dans, Gonzales vs. Kalaw-Katigbak, etc. ” explained PILC board member lawyer and professor Marichu Lambino, who also teaches the subject Law on Mass Media at the University of the Philippines College of Mass Communication.
quote” “The statement of Gloria Macapagal Arroyo’s spokesperson, Ignacio Bunye, who is a lawyer, that other groups can conduct their private quick counts as long as these would not be used for public circulation, shows the true nature of the gag order. It is the airing or publication of the quick count that Gloria Macapagal-Arroyo is afraid of. For Gloria, all headlines should be the same, that ‘GMA is leading in the official and unofficial tally’. Well, she is not, not in all. Not in the ABC Channel 5 tally. The Emperor or Empress has no clothes. And for that, the small, brave network was silenced,” stressed PILC managing counsel Marie Yuvienco.
quote” “The Comelec and the DOJ had failed to cite the law that authorizes them to censor a TV network for airing a quick count, except to say publication of false news. We presume the DOJ is referring to Article 154 of the Revised Penal Code which penalizes publication as news any false news that may endanger the public order. This is not a source of authority or legal basis to exercise censorship. The DOJ should first file a case in the courts against Channel 5, if it so desires, for violation of said law, but it cannot stop the airing of a particular news segment,” pointed out PILC lawyer Jayson Lamchek, who also teaches Public International Law at the University of the Philippines Manila.
quote”PILC criminal litigator Rommel Quizon said that “when the Comelec used the law that authorizes only Namfrel to conduct a quick count, it does not mean that the quick count of media outfits is criminalized. There is no criminal provision or punishment in said law. It only means that quick counts other than Namfrel’s are unofficial, but not criminal and certainly not illegal. Besides, neither does said law confer censorship powers on Comelec.”
quote” “Gloria Macapagal-Arroyo is not the State. It is not the State that is endangered here but her claim to a mandate. The Supreme Court has tirelessly explained in leading cases that the only time censorship or prior restraint is legal or authorized (in Near vs. Minnesota reiterated in New York Times vs. U.S.) is in time of war when the sailing dates and location of troops is not allowed to be disclosed and the State is authorized to censor those.
quote “Or analogously, in the Philippines, when there is actual street fighting between the government and rebels, and radio or live TV is airing the location of troops, or time of assault, or battle plans, government is authorized to cut off the air such broadcast. But not here. There is no such situation in this case. The gag orders are illegal,” explained Professor Lambino.
quote” “We advise Channel 5, and all newspapers and networks, to defy the Comelec and the DOJ on this since government is violating Section 4, Article 3 or the free-speech clause of the Constitution, and Section 7, Article 3 also of the Bill of Rights or the right to information on matters of public concern. Any court in the land will uphold the free-speech clause against an act of censorship,” urged Atty. Yuvienco.” Unquote. PILC statement.
Considering the importance of this mid-term elections, the pulled-out provision in Comelec Resolution 7767; and the fact that Comelec officers appointed by Garci are still there; give you an idea of things to come.
